Exclusion of Tenderes due to Anti-competitive Agreements: In a Procurement and Economic Perspective

Alexandra Maria Grydgaard & Henriette Storr Andersen

Student thesis: Master thesis


The purpose of this Master Thesis is to explore whether there is an incentive for contracting authorities to enroll the voluntary ground for exclusion that allows for the exclusion of tenderers who enter into agreements for the purpose of distorting competition in the contract notice. Furthermore, the purpose is to examine to what extent this incentive can be optimized. This is answered through a legal, economic and integrated analysis. The thesis begins with a legal analysis of whether the public procurement act, section 137(1)(4) is practically applicable to contracting entities and how these must carry out an assessment of selfcleaning. The analysis is based on the legal dogmatic method, including relevant regulation and case law. It is concluded that in many respects, the public procurement act, section 137(1)(4) does not seem practical, since it imposes a burden of proof on the contracting authority, where the interpretation thereof is unclear. In addition, it is concluded that in order to assess the tenderer's documentation of reliability, the contracting authority needs to consider all measures on self-cleaning in the public procurement act, section 138(3) depending on the specific case. Next, follows an economic analysis of how different forms of cooperation between tenderers affect the contracting authority’s price, and to what extent the contracting authority has an incentive to exclude tenderers due to potentially distorting behavior. Through auction theory, it is concluded that the market structure changes when tenderers cooperate and that this affects the contracting authority's price. Furthermore, it is concluded that the contracting authority has an incentive to exclude anti-competitive behavior. In conclusion, the legal and economic analyzes are assembled in the integrated chapter. The aim is to answer the overall question mentioned above. By using game theory, it is concluded that there are significant risks involved in enrolling the provision - considering the material currently available to contracting entities. Thus, there is no incentive to enroll it. However, it is possible to optimize the incentive by making clear recommendations and guidelines for public entities so that the likelihood of proper use is increased

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
Publication date2019
Number of pages145